Petition for Writ of Certiorari — Perez v. Saks Fifth Avenue, Inc.

Supreme Court, U.S.

FILED

NO. 0916535 JUN 14 2010

Supreme Court of the Gnited States

*

LANA PEREZ and ELENA LEFEFLER

Petitioners

\

SAKS FIRTH AVENUE, INC

lat PON ril

On Petition For A Writ Of Certiorari

lo The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR A WREP OF CERTIORARI

ILRIC SCHNAPPER?*

University of Washington

‘ chool of Law

PO. Box 353020

schnapp@u.washington.edu

Seattle, WA 98195

(206) 616-3167

KRIKA DEUTSCH ROTBARI

DEUTSCH ROTBART &

ASSO TATES, PA

1755 ‘Technology Way

Boca Raton, FL 33431

erotbart@dralawfirm.com

(D561) 361-8010

Attorneys for Petitioners

Coun vl of Record

QUESTION PRESENTED

Where a discrimination plaintiff asserts that the

ultimate decisionmaker who dismissed her was 1n

fluenced by a different othicial who acted with an

unlawful motive, must the plaintiff prove that the

ullimate decisionmaker was a “mere conduit” for the

motives of the unlawfully motivated olficial?

PAK TIES

Phe parties are set forth in the « i(plion

Que Lion Fresented i

Partie 1

Opinions below l

Jurisdiction J

statutory PB: isions Involved

Appt nd

pinion Ol tfie (court ol LA Pope il flor Utne le

Opinion ol the District Court for the Southern

1); Lrict ) Florida January ) ALLO, ve

Circuit Denying Rehearin and nehearin

lon Bane March 17, 2010 f

TABLE OF AUTHORITIES

Pape

( ASKS

Heyrd vo. [lltnor: Depl of Public Health, 423 F.3d

696 (7th Cir. 2005) 9 10

( rawford i Carroll, 529 F.3d 961 O1th Cir

ZAM) D &

Lees 3 Hyundat Motor M fe Alahama, LLC

2010 WI.675714 1th Cir. 2010) 8

Dwyer % Kthan Allen fetal, Ini 325

hed App» 755 (11th Cur 2009)

Hampton t (city of South Miami Ih6

led Appx 9467 (11th Cur ZUODB ) oO

Jennings v. Hlinots Department of Correction

496 F.3d 764 (7th Cir. 2007) J

Liampaltlas Vv. Mini-Curccutts, Lab, fre 163 I'.3d

12836 (11th Cir. 1998).. 9 10

Long v. Teacher’s Retirement System of fllinots,

585 F.3d 844 (7th Cir. 2OOY) g

Malu v. City Oo} Gainesville, 270 Fed Appx 94D

(lith Cir. 2008) re

Phelan { (‘ook County. 163 tod 4aa (7th Coil

2006) G

Quinn v. Monroe County, 330 F.2d 13820 (11th

Cir. 2a +

Roberts v. Randstad North America, [ne., 231

hed Appx. 890 (11th Cir. 2007) &

TABLE OF AUTHORITIES — Continued

Page

Schreiner v. Caterpillar, Ine., 250 F.3d 1096

(7th Cir. ZOO] ) o

Shaye ( Upyotin €.. 913 F.2d 898 (7th Cnr

1990) 2

Shockley Vv. Healthsouth Central Creorgta Reehab

Hospttal, PA Bs’ led Appx. 742 (11th Cir. 2008) ey

Staub v. Proctor Hospital, 560 F.3d 647 (7th

Cir. 2009), certitorart granted, 2010 WIL.

1525785 (2010) passtm

Stimpson v. City of Tuscaloosa, 186 F.3d 1328

(lith Cir. 1999)............ 4,8%,9

Tucker vo. flousing Authority of the Birmingham

Dist-, 229 Fed. Appx. 820 (1lith Cir. 2007) 8

Tiacker wv? lalladega Culy sé hools ; 171 ed Appx

289 (11th Cir. 2006) &

Wills v. Marton County Auditors Office, 118

I.3d 542 (7th Cir. 1997). 9%

OTATUTI

I8 WSC. & 125401)

29 U.S.C. § 623(a)(1)

29 U.S.C. § 623(d)

PABLEI OF AUTHORITIES — Continued

brief for Dy fendanot-Appellee-Cro Appellant

1} lt

Petition for Panel Rehearing and Suppestion

for Rehearing Kin Bane

Petition for Writ of Certioram, Staub v. Proctor

Hos pital

Petitioners Lana Perez and Itlena Leffler respect

fully pray that this Court grant a writ of certiorari to

review the judgment and opinion of the United State:

Court of Appeals for the Kleventh Circuit entered on

January 21, 2010

OPINIONS BELOW

The January 21, ZO10 opinion of the court oi

appeals, which is not reported, is set out at pp. la-2Za

of the Appendix. ‘The March 17, 2010, order of the

court of appeals denying rehearing and rehearing en

Or

4

banc is set out at pp Ha-26a of the Appendix The

January 5, 2009 opinion of the district court, which i:

reported at 592 F.Supp.2d 1388 (S.D.Fla. 2009), is set

| P]

oul at pp 3a-Z4a of the Appendix

JURISDICTION

The decision of the court of appeals was entered

on January 21, 2010. The order of the court of appeals

denying rehearing: and rehearing en bane was en

tered on March 17, 2010. The Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1)

STATUTORY PROVISIONS INVOLVED

Section 623(a)(1) of 29 U.S.C provides

limployment practices. It shall be unlawful

for an employer

(1) to fail or refuse to fire or to dis-

charge any individual or otherwise discrim

inate against any individual with respect

to dus compensation, terms, conditions, ot

privileges of employment, because of such

individual's age .

7

section 628(d) of 29 U.S.C provides In pertinent

parl

Opposition to unlawful practices; participa

Lion in investigations, proceedings, or litiga

tion. It shall be unlawful for any employer to

discriminate avainst any of his « m ployee: O!

applicants for employment because such

individual ... has opposed any practice made

unlawful by this section

STATEMENT

Plaintiffs were long time employees at a Saks

hMifth Avenue store in Bal Harbour, Florida, responsi

ble for selling high-end couture women’s clothing. In

2006 they were dismissed under circumstances that

remain in dispute. The plaintiffs alleged that they

were terminated because of their age and in retalia

tion for complaining about age-based discrimination

At the time of the dismissal Perez was 54 years old

and Leffler was 58. Saks contended that the plaintiff

were fired because they had given unauthorized dis

courts to customers al the store and because they

had permitted improper returns of merchandise

Perez and Leffler asserted that Saks had authorized

the discounts, and that the merchandise returns were

proper

The final decision to dismiss the plaintiffs wa

made by a repional Human Resources Director, Mar

garet Phelan. Ms. Phelan worked in a New York City

office of Saks; she had nO personal knowledge of the

facts related to the plaintiffs, but relied on informa

tion provided to her by Saks officials in Florida. The

central dispute at trial was whether Phelan had been

influenced (and if so, how much) by other Saks offi

clals who wanted to pet rid of Perez and Leffler

because of their age or because they had complained

about discrimination. (App. 5a). A jury returned a

verdict in favor of both plaintiffs, finding that Perez

and Lefiler both had been dismissed because of age

and in retaliation for having complained about age

discrimination. The jury awarded $370,000 in dam

ages to Perez, and $240,000 in damages to Leffle

(App 3a-4a)

Haks moved for judgment as a matter of law. It

argued that there was insufficient evidence that ap

or retaliation was a factor in the decision to dismiss

the plaintiffs. The district court, which had earlier

denied Saks’ pre-trial motion for summary judgment,

granted the defense motion and set aside the jury

verdict

The district court concluded that the jury could

reasonably have found that one Saks official, Ray

mond ‘Terbecki, was motivated by bias against the

plaintiffs because of their ape. (App. 5a). The court

held, however, that the asserted connection between

Terbecki and the official who made the final decision,

Phelan, did not satisfy the Eleventh Circuit’s legal

standard, That standard, which the district judge

noted was “known as the ‘cat’s paw’ theory,’ (App. 5a)

required the plaintiff to show that Phelan was “a

mere conduit for the discriminatory bias of [the

unlawfully motivated official.” (App. 5a). The district

court's analysis repeatedly reiterated its reliance on

the Kleventh Circuit “mere conduit” or “cat’s paw’

standard, rclying on that Circuit’s decision in

Stimpson i Cutly of Luscaloosa, 1&6 I 3d 1328, i3gd2

(lith Cir, 1999). (App. 5a). It concluded that “no rea

onable juror could conclude that in taking adverse

( mployment aclion ayainsl Plaintiffs, Phelan acted a:

“iA

Ay

rea onatble juror could have found that [Raymond]

Terbecki harbored age based animus towards Plaintiffs ” (App

The district court concluded, on the other hand, that there

was mmsullicrent evidence of ape bias or a retaliatory motive on

the part a second Sak; official, Gloma salerno (App ba-lda)

The correctness of the district court’s view of the evidence

regarding bias on the part of palerno was raised on appeal, but

was not addr ssed by the court of appre al

App. 5a (mere conduit’), 14a (cat's paw,” “mere conduit”)

bba (mere conduit” used two times) fa (mere conduit’). 18

(“mere conduit’), 23a (“conduit” used Ww 1é

three times) 24a (“mere conduit”)

a mere condulilt for ‘Terbeckil’s| age animus (App

24a)

The district court may have granted judgment a:

a matter of law on a second ground as well. In several

passages in his opinion the district judge stated that

there was no evidence that Terbecki had influenced

Phelan. (App. 14a-1]5a) In some iterations, on the

other hand, the district court opinion links the stan

dards in a way which suggests that by “influence” the

district judge meant sulfiment influence to turn

Phelan into a “mere conduit

Qn appeal Saks defended on two distinct grounds

ti

the award of judgment as a matter of law. First, Sal

argued that the evidence did not satisfy the “conduit

or “cat's paw’ standard. In this regard Saks relied

repeatedly on the Seventh Circuit decision in Staub °

Proctor Hospttal, 560 F.3d 647 (7th Cir. ZOOY)

drorart vpranted, 2010 Wh 1525785 (2010). Quoting

eer

Staub aks asserted that 7 tlo bye ci Cat peciM

Che distmet court also concluded that the: Wa iJ 1!

erent evidence that Vhelan acted a imere conduit for I

lawlul motive on the part of Salerno

4 I" re App bia (‘no reasonable juror could Nave tound that

ferbecki influenced Phelan’s decision such that Vhelan became

aomere conduit for Terbeck) discriminatory bra (empta

added)

bmiel for Delendant-Ay

quire e) rehial Ltn Lull of migular 4

ice

( spurt LT} thi (oircult ind = ¢ ( at é ro

Linely vacate jury verdict Where i here

there Wa! mnsullicient ( hdenc tryeait thie

decisionmaker wi a mer cal pra lor

ubordinat with § di ImMinato! pnimu

S r , Staub HO | 16 it Qe

bin at paw ast Live C trict court ha

il obligation LO aelermIne whethe!

reasonable jury would find that the non

decisionmaker had “singular influence é

hie che bOnmnaKe! laubh fot) T dat 65%

a second, separate argument Saks contended

wadly that “there was no evidence that Phelan

iluenced by ‘lerb I The Kleventh Circuit 1

Lt} first I if In altirmtt! the deci

ct court

hie aqistrict ene saa ind tt idgme!

W oh Warranted be iuiS¢ I rea ymuable yu

ild conclude that in takin dversi

' nent i i i ill l Plamtill Phel I

icled i rrie’ re conduit LQ? berbe }

‘Cyr é nimu r ret bail y mMOvlve

i { 1-4 t ( i] P| i tl L {

hoent evidence t} uerno \ ly past thre

tt muse of thei r thew position f ] rim

Lhict rho ch ssid ed the deci rh

Per { Sak hifth Avente, Ln IIL

Ik Supp.2d 1288, 1899-1400 (5.D.Fla. 2009)

We conclude thicat the court properly

sranted yudgment as a matter of law

(App. 2a) (bracketed matenal in original). The court

of appeals did not address saks alternative argument

that ‘berbecki did not influence Phelan at all

On March 17, 2010, the court of appeals denied a

timely petition for rehearing and rehearing en bans

(App. 26a). On April 17, 2010, this Court granted

certiorari in Staub. 2010 WEL 1525785

REASONS FOR GRANTING THE WRIEI

mice the decision of the court of appeal inh Liae

instant case, this Court has granted certiorari in

Staub t Proctor Hlospttal No. 09-400. The question

pre ented in Staub |

} |

In what circumstance: ba Y «id erihy LOyYC! tye

held hable based on the untawiul intent of

1 matte!

‘raphical ra in othe) dastrict) court

word condi mistead of “conduit

Phe petition urged that rehearm e pri 1in p

addre thie il pav doctrine Petition for Panel Kehe iin}

lun Bane me

officials who caused or influenced but did not

11

make the ultimate employment decision?

This Court’s decision in Staub is likely to affect the

disposition of the petition in the instant case. Ac

cordingly, action on this petition should be deferred

pending final action by this Court in Slaub

The lower courts in the instant case, like the

4

Seventh Circuit in Staub, apphed a highly demanding

tandard regarding the connection between a biased

official and the action of the ultimate decisionmaker

A series of Eleventh Circuit decisions have held that

In a case such as this an employer i: only liable if the

ultimate decisionmaker was a “mere conduit” for or a

é i

cat: paw of a biased official

Petition for Writ of Certiorari, Staub vo Proctor Hospital

iy, Dees v. Hyundat Motor Mfy. Alabama, LLC, 2010

WI. 675714 at *2 (11th Cir. 2010) (mere conduit,” “cat's paw’;

Citing: Stimpson); Dwyer ¢ Kthan Allen Retail, Inc 320

?

Fed Appx. 755. 758 (1th Cir. 2009) (“mere conduit,” “eat’s paw’

[>] :

citing Stimpson), Shockley 3 Hlealthsouth Central Georpia

Rehab. Hospital, 293 Fed Appx. 742, 746 (11th Cir. 2008) Cmere

conduit”; citing Stimpson), Crawford v. Carroll, 529 F.3d 961,

979 m.21 (lith Cir. 2008) (“mere conduit,” “cat’s paw,” “rubbes

tamp”; citing Stimpson); Malu v. City of Gainesville, 270

bed Appx. 945, 949 ( llth Cir. 2008) (“mere conduit,” “eats paw ;

citing Stumpson); Roberts v. Randstad North America, Inc., 231

led Appx. 890, 895 (11th Cir. 2007); Tia ker vu. Hlousing Authority

of the Birmingham Dist., 229 Fed Appx. 820, 822-23 (lith Cir

2007) “mere conduit,” “cat’s paw”; citing Stimpson); Hampton

Cty of South Miami, 186 Fed Appx. 967, 970 n.3 (11th Cir, Z006)

mere conduit”; citing Stimpson); Tucker vo. Talladega City

(Continued on followimy page)

The Eleventh Circuit's “conduit” or “cat's paw”

standard is essentially the same as the “cat’s paw”

standard applied by the Seventh Circuit in Staub

560 F.3d at 650, 655-56. The Eleventh Cuircuit’s

requirement that the ultimate decisionmaker be a

“conduit” originated in a decision in that circuit that

expressly rehed on the seminal Seventh Circuit

decision in this area of the law, which utilized that

very term.” The Seventh Circuit itself has repeatedly

described its own standard as requiring proof that

the ultimate decisionmaker was a “conduit” for the

motives of the biased official, which that circuit treats

as synonymous with the “cat’s paw” standard.” The

Seventh and Eleventh Circuit standard requires a

showing that the biased official so dominated the

Schools, hed. Appx. 249, 297 (1lith Cir. 2006) “mere con

duit,” “cats paw’; erting Slimpson), Quinn vo. Monroe County,

330 F.2d 13820, 1327 (11th Cir. 2003) (mere conduit’; citing

Stimpson), Stimpson v. City of Thtscaloosa, 186 F.3d 13828, 133:

(Jith Cir, 1999) @ mere conduit, “cats paw,” “rubber stamp);

Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 12386, 1249 (11th

Cir. 1998) “mere conduit,” “cat’s paw,” “rubber stamp”)

Llampalla v. Mint Circuits, Lab, Ince , 163 F.3d at 1249

(citing Shaper t U/pjohkn Co., 913 2d 3898, 405 (7th Cir. 1990))

“ In seven decisions the Seventh Circuit has used “eat?

paw” and “conduit” as synonymous terms for the same standard

Long ov. Teacher’s Retirement System of Mllinots, 585 F.3d 344

351 (7th Cir 2009); Jennings v. Iilinots Department of Corres

tions, 496 F.Sd 764, 76% (7th Cir. 2007): Phelan v. Cook County,

463 F.3d 733, 784 (7th Cir. 2006); Byrd v. Illinois Dept. of Public

flealth, 423 F.4d 696, 705-06, 709-10 (7th Cir. 2005); Schreiner t

Caterpillar, Lr 250 F.3d 1096, 1101 (7th Cir. 2001); Wills %

Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Ci

1997): Shaper v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)

LQ

decisionmaking process that the nominal ultimate

decisionmaker was little more than a pawn of the

biased manager. See, e.g., Byrd v. Illinots Dept. of

Public Health. 423 ¥.3d 696. 708 (7th Cir. 2005)

(“Although ‘conduit’ is not a defined word We

]

think the meaning is plain enough; if the employe:

simply rubber stamps a recommendation with illegal

bias, the employer is lable for the harm caused”);

Lliampallas v. Mint-Curcutts, Lab, Inc., 163 F.3d 1236,

1249 (lith Cir. 1998) (rubber stamp| |”)

Certiorar: has been pranted in Staub to deter

mine whether that is the appropriate standard for

resolving discrimination cases under federal employ

ment statutes. If this Court in Staub rejects that type

of stringent standard, the Eleventh Circuit should be

directed to reconsider the instant case in light of the

standard established by this Court in Staub

In the instant case Saks has also argued, in the

alternative, that there is insufficient evidence to

support a jury finding that one or more biased Sak;

officials influenced the decision to fire the plaintiffs

The court of appeals did not address that contention

If this Court in Staub were to adopt a Jeval standard

inconsistent with the “mere conduit” standard ap

pled by the courts below, respondent would be free to

renew on remand to the court of appeals its con

tention that it would be entitled to judgment as a

matter of law under a less stringent standard

1 |

CONCLUSION

Kor the above reasons, this Court should defer

action on the petition pending the Courts decision in

MPLOILO A Proe fo7 Hospital

Respectfully submitted,

4

fkIC SCHNAPPER

University of Washington

school of Law

PO. Box 353020

schnapp@u.washington.edu

Seattle, WA 98195

(206) 616-3167

MRIKA DEUTSCH ROTBAR'

DEUTSCH ROTRART &

ASSOCIATES, PA

1755 ‘Technology Way

Boca Raton, FL 33431

edrotbart@dralawtirm.com

(561) 361 8010

Atlfornmeys: jor Petitioner:

Counsel Of Record

[DO NOP PUBLISH |

IN THe UNITED STATES COURT OF APPEALS

ROR TH ELEVENTH CIRCUFI

DD €. Docket No. 07-21794-CV-KMM

LANA PEREZ, ELENA LEFEFLER,

Plaintifi Appellant:

(Tos: Appellee.

SAKS FIFTH AVENU Ic, IN¢

3 loreign corporation

doing business in Florida

Defendant Appell (

Cross-Appellant:

App als from the United States District Court

for the Southern District of klorida

(January 21, ZO1Q)

scfore WILSON and , Cireuit Judges and

RESTANI,* Judge

PER CURIAM

The district judge, in a_ well-reasoned order,

granted Saks I'ifth Avenue, Inc.’s renewed motion for

judgement as a matter of law pursuant to Federal Rule

of Civil Procedure 50(b). He found that the judgment

was warranted because “no reasonable juror could

conclude that in taking adverse employment action

against Plaintiffs, Phelan acted as a mere |conduit!

for Ferbecki or Salerno’s age animus or retaliatory

motives.” Perez vo. Saks fifth Avenue, Ine., 592

Ik. Supp. Zd 1388, 1399-1400 (S.D. Fla. 2009). We have

carefully reviewed the record and the court’s order,

and we conclude that the court’ properly granted

judgment as a matter of law. We thercfore affirm the

yudgment of the district court. As a result, Saks’s con

ditional cross-appeal from the denral of its alternative

motion for new trial pursuant to I*ederal Rules of

Civil Procedure 50(b) and 59(a) is moot

AFFIRMED

Iflonorable Jane A. kKestani, Chiet Judpe (Jnited Ntates

Court of International ‘Trade, sitting by desiynation

IN THE UNTPED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 07-21794-CIV-—MOORS/SIMONTON

LANA PIChEZG and

MLENA LiF ELEcKR

Plaintiffs,

Vs

SAKS FIFTH AVENUE, INC

a foreign Corporation doing

busimess im Florida

Defendant

ORDER GRANTING DEFENDANT’S MOTION

FOR JUDGMENT AS A MATTER OF LAW

THIS CAUSE came before the Court upon

Defendant’s Motion for Judgment as a Matter of Law

(dkt # 179)

UPON CONSIDERATION of the Motion, the

Responses, the pertinent portions of the record, and

being otherwise fully advised in the premises, the

(Court enters the following (order

BACKGROUND

The facets of this case are set forth in this Court's

Summary Judgment Order dated August 7, 2008 (dkt

# 131). ‘Trial was held and the jury returned a verdict

in favor of Plaintiff Lana Perez (“Perez”) for $370,000

1a

and in favor of Plaintiff? Hlena Leffler (“Leffler”) for

$240,000. Special Verdict Form (dkt # 171)

ll. ANALYSIS

Defendant Saks Fifth Avenue, Inc. (“Saks”) con

tends that judgment as a matter of law 1s warranted

because Pjaintifis fasled to prove that ape was a

substantial motivating factor in the decision to

suspend and terminate Plaintiffs. When ruling on a

motion for judgment as a matter of law, a court must

“consider all the evidence in the light most favorable

to the non-moving party, and independently deter

mine whether the facts and inferences’ point’ so

overwhelmingly in favor of the movant . that

reasonable people could not arrive at a contrary

verdicl.” Webb-ldwards v. Orange County Shertff’s

Office, 525 3d 1013, 1029 (llth Cir. 2008) (quoting

Johnson Knters. of Jacksonville, Inc, v. hPL Group,

Inc., 162 dd 1290, 130% (lith Cir. 199%)) Gnternal

quotation marks and citation omitted) The court

must “affirm the jury verdict unless there is no legal

basis upon which the jury could have found for the

[non Movinhy parry |.’ Telecom Technical Servs. Inc. v

Rtolm Co., 388 F.3d %20, 830 (Lith Cir. 2004)

The Parties agree that the decision to terminate

Plaintiffs was made by Margaret Phelan (“Phelan”),

the Regional Director of Human Resources for Saks

but disagree as to whether her decision was im

permissibly influenced by the age based animus of

others. Allegations that a neutral decision maker wa:

influenced by the age animus of others, such that the

decision maker becomes a mere conduit for the

discriminatory bias of another, ts sometimes Known

AS the “cat's paw theory see Stimpson { (Cily of

Tuscaloosa 86 F.3d 1328, 332 Q(lj]th Cn 1999)

Plaintiffs’ Case proceeded Upon the theory that

Raymond ‘lerbecki (‘Terbecki”), Plaintiffs’ manager,

and Gloria Salerno (Salerno), Director of J4uman

Resources for Saks at the Bal Harbour store, both

harbored ape animus towards Plaintiffs, and that

Terbecki and Salerno impermissibly influenced

Phelan’s decision to suspend and terminate Plaintiff

s,ased Animus

Based Animus by ‘lerbeck)

A reasonable juror could have found that

Terbecki harbored age based animus’ towards

Plaintiffs. Perez testified that Terbecki called her

“harried,” told her that “You look like my father,” and

stated that he was going to move her to the back

room because she was “old.” 9/22 Trnal Tr. at 111, 115,

126. Plaintiffs also testified that they were denied

professional opportunities by Terbecki, which were

instead piven to younger employees and that younger

employees were favored. See 9/22 Trial Tr. at 122-125,

201; 9/23 Trial Tr. at 42, 59. This evidence js suf

ficient to support a finding that ‘Terbecki harbored

age based animu:

Oa

ased Animus by Salerno

A reasonable juror could not) have found that

palerno harbored age based aninu Loward Plain

liff_s. Salerno worked for Saks at Bal Harbour from

July of 2005 to April of 2006. 9/19 Trial. Tr. at 15

‘Lerbecki testified that at and palerno worked

conjunction when making hiring decisions in the

Contemporary Department. 9/15 ‘Trial ‘Tr. at: 104-05,

17%. ‘Verbecki also testified that during the time that

both he and Salerno worked for Saks, 11 employee:

were hired into the Contemporary Department, all of

whom were under the age of 40. 9/15 ‘Trial Tr. at 18%

22. No evidence was presented concerning the num

ber of employees that applied for these positions o1

the ages of the applicant: , piven that the age of an

ipplicant 1s unknown until the applicant is hired

‘The (contemporary Department had iz te lo em

ployees, including Terbecki. 9/15 Trial ‘Tr. at 103. The

J

msaks store at Bal Harbour had approximately 250

employees. 9/19 ‘Trial ‘Tr. at’ &2. Salerno also par

icipated in hiring employees for other department:

fd. at 32. From July of 2005 to April of 2006, 5%’ em

ployees were hired at the Bal Harbour store, approx

mately one-third of whom were between the ages of

40 and 72. fd. at 1: ‘Jeux. 4%. Salerno'’s assistant

in Iluman Resources \ both over the age otf 40

9/19 ‘Trial ‘Tr. at 129

mtatistics can be an important source of prool in

employment discrimination ca since ° (

planation, it is ordinarily to be expected that non

dis crimimnatory hiring prachice Willin time result in a

work force more or le: representative of the racial

and ethnic composition of the population in’ the

community from Which employe are hired

Peiphtal v. Metro. Dade County, 26 F.3d 1545, 1553

(ljth Cu 1994) (quoting llazelwood Sch. ist. ¢

U.S., 433 U.S. 299, 307 (1977)). “IS |tatistices come

1D gotimite variety 'T]heir usefulness depends on

all the surrounding facts and circumstances, ” Algo

r fommman Transp., Inc., 789 F.2d 859, 870 (11th Ci

1986) (quoting Intl Brotherhood of Teamsters ¢

U/nited States, 441 U.S. 311-12 (1977))

Here, the hiring of 11 employees under the age of

10 into the Contemporary Department from July of

2005 to April of 2006 is, without more, insufficient to

enable a reasonable juror to conclude that Salerno

harbored age animus towards Plaintiffs. This hiring

data, while not irrelevant, 1s simply too narrow in

time, scope and substance to reasonably support a

finding of As C animu: by Salerno This IS SO becau: (*

of: 1) the short time period during which the 11

Contemporary Department associates were hired;

2) the 12 to 15 employees in the Contemporary De

partment comprised only a small percentage of the

gar Harbour store's total employees; 3) approxi

mately one-third of the employees hired during

Salerno’s tenure were over the ave of 40: 4) Salerno

was involved in hiring for the entire Bal Harbour

store, 5) hiring in the Contemporary Department

comprised less that |sic] twenty percent of total hiring

during Salerno’s tenure; 6) Salerno was not solely

responsible for thie recruiting and hin of

( onvemporary Associate aod / Lae “ily rice Ot

onavallability of evidence concerning the mumber of

applicant Lo the Conteinporary Department during

the relevant }> rod. See 9/15 ‘Trial ‘Tr. at 108-05, 17%

he fact that the Contemporary Departments first

two hires after Plaintilfs were terminated were unde:

the age of 40 adds nothing to the analysi palerno

did not participate in their hiring and thus thei

hiring is not indicative of any age animus by Salerno

Accordingly While the Contemporary Department

hiring data during Salerno’s tenure is not wholly

irrelevant, when viewed in the context of the Bal

llarbour Lore overall hiring data, no reasonable

yuror could rely on the hiring data to conclude that

salerno harbored age animu either towards Plain

till Oy! renerally

Plaintiff also pore ented evidence that Deborah

(

Slack (“Slack”), the Store Manager for Saks at Bal

Hlarbour, emailed Salerno stating that with respect to

“Willing the St. John position assigned sales asso

ciate, younger 1s a priority.” 9/19 ‘Trial Tr. at 242-4

Slack testified that “younger” referenced attitude and

not age. Id. at 243-44. The person hired to fill the

After Plaimmtift ts were terminated, the next two hire mn th

Contemporary Wepartment wer Amber tlendmeckson hired

Ypril zo, 2Uv06, and Lauren Ma iro hired dune 6, ZOO06 i

I, x WwW. Hell area 24 in Plaintill lUxhiibit 4 denote the (on

temporary Department. See 9/19 Trial Tr. at 86-4¢. Salerno lett

iks In April of ZOO and testified that t) ke) did not a rst

vith hiring employes Who re bired on \pril hy, 2006. Id. at

}

John position, KRosahe Borg | Borg ) was ¢] years ol

ape Id. at 129-30. This statement could lead a rea

sonable pyuror to conclude that Slack was instructing

Salerno to take age into account in hiring for the St

John position, which could itself support the inference

that Slack could have considered ape to be a priority

with respect to other employment opportunities with

in the store. However, based on the fact that Borg

age 71, ultimately filled the position, Salerno either

ignored Slack’s instruction or did not) understand

Slack’s comment concerning younger as a priority to

have been made in reference to age. Therefore

Slack’s comment to Salerno cannot reasonably sup

port a finding of age based animus on the part. of

CN

Salerno

Plaintiffs testified that they attended a meeting

Which was also attended by Salerno, ‘Terbecki and two

other associates. 9/22 Trial Tr. at 1381. Perez testified

that during the meeting, which was convened to

address issues occurring between associates on the

floor of the Contemporary Department, Salerno be

came angry and yelled “dont you cross my door

again.” Id. at 13%. However, Salerno’s behavior and

tatements at this meeting do not constitute evidence

of discriminatory bias because the sales associates in

attendance were both over and under the aApre ol 40

9/15 ‘Trial Tr. at 119, 154. Moreover, the reason for the

meeting, and the subject of Salerno’s comment

related to the operation of the Contemporary Depart

ment, and was unrelated to age or the issue of age

discrimination, Therefore, no reasonable juror could

conclude that Salernos statement 1 evidence of ape

animus or retaliation because the statement had no

connection with, and made no reference to, the age of

any employee. Furthermore, Plaintiffs’ claims that

they were denied the opportunity to act as represen

tatiaves of various clothing Jines is not evidence of age

based animus by Salerno because no evidence was

presented that Salerno had any responsibility over, o1

involvement with, the assignment of clothing lines to

ale «i Ociatle

Perez re ported ‘Terbecks comment that he wa

oing to move her to the back room because of her age

to Mindy Curtis (“Curtis”) and Salerno in Human

Resources, stating that 11 constituted age discrimina

tion. O/22 ‘Trial Tr at 119-21. Perez testified that

ulerno did not agree that any age discrimination

had occurred and that Perez was unaware of any

action taken pursuant to her complaint against

Terbecki. Id. at 120-21. However, Perez was never

moved to the back room. /d. at 40. Perez also testified

that she did not have any interactions with Salerno

prior to that mecting. /d. at 116. Shortly thereatter

Salerno sent Curtis and ‘lerbecki an email stating

that they needed to discuss the fact that Perez “need:

fo be written up for leaving on Saturday and if she

has nol shown up on Sunday and today, then it would

be considered job abandonment.” 9/19 ‘Trial Tr. at 41

17] J: 4. ‘Terbecki re ponded stating that Perez had

or) ‘ qd Ors unday ld

fia dagehit) of thie urroundinyg facts and circum

tances concerning Salerno’s disagreement with Perez

lla

that age discrimination had occurred, there is in

sufficient evidence for a reasonable juror to conclude

that Salerno harbored age animus. ‘The theory that

Salerno harbored age based animus based on he

failure to acknowledge to Perez that ‘Verbecki acted in

a discriminatory fashion is premised on the notion

‘that it is always reasonable to conclude that inaction

by a third party in response to an allegation of aye

discrimination constitutes age discrimination on the

part of the third party to whom the claim is conveyed

While this might be true in some instances, the

reasonableness of such a conclusion necessarily

depends on surrounding facts and circumstance:

Therefore, it 3s not inevitably true that in every case

in Which a human rcsources employee fails. to

acknowledge an allegation of age discrimination com

mitted by a third party, such failure to acknowledge

may always be reasonably attributed to age based

aafriigyiu

Here, there was no prior relationship, adverse o1

otherwise, between Salerno and Perez that’ would

suggest a likelihood of age animus by Salerno to

wards Perez. No evidence was presented that Salerno

had been indifferent to other claims of any form of

discrimination by other Saks’ employees in the past

Nor did the evidence indicate that Salerno and

Terbecki had any type of special relationship that

would have motivated Salerno to shield ‘Terbecki from

Perez's complaints or to adopt Terbecki’s age animu:

palerno’s failure to address Perez’s complaints in a

way that satished Perez does not constitute direct or

meaningful circumstantial evidence that Salerno har

bored age animus towards Perez. Nor does the evi

dence reasonably support the conclusion that Salerno

was indifferent to Perez’s claims because Salerno

responded to Perez’s claim by ensuring that Perez

was not moved to the back room. 9/19 Trial ‘Tr. at 39

Salerno also discussed the issue with Terbecki. /d. No

evidence was presented that Leffler made a discrimi

nation claim to Salerno or that Salerno was indif

ferent to such a claim.” ‘Therefore, no reasonable juror

could find that Salerno harbored age based animus

towards Plaintiffs based on Salernos response to

Perez's claims of discrimination by ‘Terbeck. ‘To find

otherwise would pive rise to a de facto presumption of

ALEC based animus on the part ol a human resource:

employee whenever the human resources employee

to respond to an employee's discrimination

or to acknowledge the claim, in ay that

the complainant

Plaintiffs also went to preat lengths at trial to

prove that Plaintiffs received brand filtering or em

powerment training in which they were taught that

they had discretion to authorize discounts and that

written discount policy defining an

lLeftiler testified that she complained to Human Kesouree

Perbecki had called her a shark, in reference to her ap

1 Laclit G/23 ‘Trial Vs al 42-45 liowever, no

juror could conclude that this comment was related

cd upon, ave animu Furthermore, Defendant's ob

lo Phaimntall altempts to cheit testimony concerning

comments to Noel Suprue were ustarmed. dd. at 50-5]

unauthorized discount. While this may be evidence

that Plaintiffs’ were unfairly suspended and termi

nated, it is not evidence of age animus by Salerno or

that Saks’ stated reason for taking adverse employ

ment action against Plaintiffs was merely pretextual.

Kiven though Plaintiffs believed they were empowered

to give discounts based on training they received

at Saks, this does not support an inference of ape

animus by Salerno because there is no logical rela-

lionship between Plaintiffs’ subjective behef as to the

appropriateness of their conduct and Salerno’s senti-

ment as to the respective apes of Plaintiffs. No evs

dence was presented that Salerno attended the brand

filtering training, that she had any knowledge of

information from the training related to discounts, o1

that she had general knowledge about the use of

unauthorized discounts by other Contemporary De

partment associates. Nor does the empowerment

training and fack of a definition for unauthorized

discounts bear any relation to the lkelihood that

Salerno influenced Phelan’s decision to terminate

Plaintiffs. Therefore, the evidence concerning the em

powerment training and Saks’ discount policy bears

primarily on the fairness of Plaintiffs’ termination, an

issue not before the jury at trial. Accordingly, evalu

ating the evidence in its entirety, no reasonable juror

could conclude that Salerno harbored age animu:

towards Plaintiffs or that Plaintiffs’ suspension and

termination was retaliatory

14a

BB. “Cat's Paw’ Theory

1. Terbecki’s Influence on Phelan’s Decision

lo Suspend and Terminate Plaintiffs

Piaintiffs bore the burden of proving that

‘Yerbecki or Salerno influenced Phelan to take adverse

employment action against Plaintiffs because of age

based animus or retahatory motives, such that

Phelan was a mere conduit for the discriminatory

bias or retaliatory motives of Terbecki or Salerno.

However, Terbecki never had contact with Phelan

concerning the Asset Protection Department’s investi-

gation of Plaintiffs or the suspension and termination

of Plaintiffs. 9/16 Trial Tr at. 14-15. Nor did Verbeck:

participate in, or initiate, the Asset Protection’s

investigation. 9/16 ‘Trial ‘Tr. at 59-60; 9/17 Trial Tr. at

26. No evidence to the contrary was presented

Without having participated in the Asset Protection

investigation and in the absence of any contact with

Phelan, ‘Verbecki could not have influenced Phelan’s

ultimate decision to terminate Plaintiffs or skewed

the results of the Asset Protection investigation to

influence Phelan’s decision. There +s no evidence in

Plaintifis’ intimation that ‘Verbecki initiated the Asset

Protection investipation was unsupported by any evidence. See

9/22 ‘Trial ‘Tr. at 224. Plaintifis are not entitled to inference:

drawn in their favor based on testimony constituting unsup

ported speculation. See Lloyd v. Card, 283 Fed. Appx. 696, 701

(Jdth Cir. 2008) (stating that inferences based on speculation

are not reasonable) (citing Marshall vo. Cty of Cape Corat,

Kela., 797 ¥ 2d 1555, 1559 (11th Cir. 19%6)). While evidence wa:

presented that Terbecki initiated Salerno’s investigation by

(Continued on following pape)

Da

the record that ‘Terbecki used any other means of

influencing Phelan’s decision to terminate Plaintiff;

Therefore, even though a reasonable juror could have

concluded that ‘Verbecki harbored aye animus, mo

reasonable juror could have found that ‘Terbecki

influenced Phelan’s decision such that Phelan became

a mere conduit for ‘Terbecki’s discriminatory bias or

retaliatory MOoLIVeSs

, 4

Salerno’s Influence on Phelan’s Decision

LO mus pend and ‘Terminate Plaintiffs

Piaintiffs presented insufficient evidence at trial

for a reasonable juror to conclude that Salerno har

bored age animus. However, assuming, arguendo,

that Salerno maintained discriminatory bias apainst

Plaintiffs, there was insufficient evidence for a rea

sonable juror to conclude that Salerno influenced

Phelan’s decision to terminate Plaintiffs such that

Phelan was a mere conduit for Salerno’s age animus

or retaliatory motives. On March 16, 2006, Terbecki

sent Salerno an email notifying her that a sales

associate had piven him a receipt indicating: that

Leffler had piven an unauthorized discount. 9/19

Trial ‘Tr. at G4. Salerno responded to ‘Terbecki by

asking him to review other receipts to determine if

Letiler had made other unauthorized discounts. /d. at

providing her with a receipt, that investigation never yielded

|

any results because ‘Terbecki did not conduct the review of

Plaintiff ales and refunds as Salerno requested

ba

62; Pls’ kx. 16. Salerno notified Phelan of the receipt

and told Phelan that she was in the process of deter

mining how many times Leffler had piven un

authorized discounts in the last month. 9/16 Trial ‘Tr.

at 154-55. Terbecki never investigated Plaintiffs’ sales

and refunds and did not provide Salerno with any

‘r receipts. 9/19 Trial ‘Tr. at 61-62. On March 21,

2006, Salerno sent Phelan an email stating that

Salerno had a number of issues to discuss with her,

including Leffler’s unauthorized discounts. /d. at 155

56; Pls’ Ex. 17. Phelan responded that she did not

have time to discuss the issues at that time but that

they would speak the next day. /d. at 156. Neither

party recalled the specifics of any conversation that

occurred the following day concerning Leffler’s dt:

counts. /d. at 157; 9/19 ‘Trial ‘Tr. at 72

On March 24, 2006, Jennifer Hanno (“Hanno”)

Asset Protection Manager at the Bal Harbour Store,

sent an email to Salerno notifying Salerno of the in

vestigation Asset Protection had been conducting

since December of 2005 concerning Plaintiffs’ un

authorized discounts and refunds. 9/17 ‘Trial ‘Tr. at 23:

Pi.s Ix 1% ‘The email contained an attached

spreadsheet providing the results of the investigation

Pi.s’ Ix. 18. On March 25, 2006, Salerno sent an

email to Phelan which included the spreadsheet and

stated that “lals per our discussion yesterday, Lana

Perez and Elena Leffler have been doing this to

vether.” Pls’ Ix 18 Salerno did not) recall the

specific: of the conversation referenced in the email

9/17 Trial Tr. at 75. Plaintiff were suspended on

lia

April 3, 2006. 9/16 Trial Tr. at 173-74. Phelen [sic]

subsequently terminated Plaintiffs for piving un

authorized discounts and refunds. 9/16 ‘Trial ‘Tr. at

1GO, 162

No reasonable juror could conclude, based on the

evidence presented, that Salerno influenced Phelan’:

decision to terminate Plaintiffs such that Phelan be

came a mere conduit for Salerno’s age animus or

retaliatory motives. Although Salerno instructed

Terbecki to review Plaintiffs’ sales and refund ac

tivities, Terbecki never complied with Salerno’s in

struction. Therefore, Salerno was not privy to any

information concerning Plaintiffs’ sales and refund

practices prior to receiving Hanno’s March 24, ZO06

email, except for the receipt she received from

Terbecki. Moreover, Salerno’s comment that “Lana

Perez and Elena Leffler have been doing this to

gether,” which Salerno wrote when she forwarded

Hanno’s March 24th email and = spreadsheet to

Phelan, is insufficient to demonstrate that Salerno

influenced Phelan’s decision because it merely re

iterated Hanno’s findings. Pl.s’ lex. 1&8

There is evidence that Salerno s poke with Phelan

concerning Plaintiffs’ sales and refund activities at

least once between March 21 and March 24, 2006

9/19 ‘Trial ‘Tr. at 15! ' Pls’ lex 18. However, again

assuming that Salerno harbored age animus toward:

Plaintiffs, no evidence wa presented about the

nature of any di CUSSION between Salerno and Phelan

during that time period Speculation CONCEePMINE the

substance of such a conversation, beyond its general

subject matter, 1s therefore unwarranted. The mere

fact that Salerno and Phelan discussed Plaintiffs’

sales and refund activities is insufficient evidence

upon which a juror could reasonably rely to conclude

that Salerno availed herself of the opportunity to

persuade Phelan to take adverse employment action

against Plaintifis because of discriminatory bias

Moreover, the é@vidence indicates that the conversa

tion or conversations between Salerno and Phelan

c

concerning Plaintiffs occurred between March 2] and

March 24, 2006. Even if speculation concerning the

substance of such conversations was warranted, it 1:

unclear what information Salerno could have relied

on to convince Phelan to take adverse employment

action against Plaintiffs because ‘erbecki never con

ducted a review of Plaintiffs’ sales and refunds and

palerno had not yet received notice of the Asset

Protection investigation or its results. In the absence

of evidence substantiating an attempt by Salerno to

convince Phelan to take adverse cmployment action

against Plaintiffs that) rehes on more than

unsupported speculation, no reasonable juror could

conclude that, in suspending and terminating Plain

tiffs, Phelan acted as a mere conduit for Salerno’s age

based animus or retaliatory motive

Mourthermore, the evidence that the Asset’ Pro

tection investigation was closed and subsequently

reopened could not lead a reasonable juror to con

clude that Salerno influenced Phelan’s decision to

suspend and terminate Plaintiffs. Hanno was un

aware of Salerno’s efforts in March of ZOO5 to review

Plaintiffs’ sales and refund: 9/17 ‘Tnal Ir. at

Nonethele: Asset Protection commenced its own

vestigation of Plaintiff: sale: and refund

December of ZO05

The investigalion was initiated based on a lip

from Christine Ta, a sales associate in the Con

temporary Department. 9/17 ‘Trial Tr. at’ 23. ‘Thi:

investigation continued until March of 2006. On

January 23, 2006, Megan Phillips (Phillips”), a Sak;

corporate investigator, sent an email to Hanno

concerning the investigation of Plaintilfs, stating that

“if there is no activity or anything substantial to go

Ol}, let’s close these inve tigation: " Id. at 5] Phillips

also made a notation in APIS, a system used by Asset

Protection, indicating that she closed the investiga

t

tion due to inactivity. /d. at 68-69. Hlanno testified

Alex Freixa (“Freixa’), the Sal Asset Protection Super

visor, testified that the investigation into Plaintiff sales and

refund practice was initiated because of excessive discount

that appeared in regular daily report produced by Asset

Protection. 9/238 ‘Tmnal Tr. at. 229-41. There is therefore some

inconsistency between the testimony of Hanno and Freixa as to

Whether the investigation of Plaintiffs was initiated by a tip

from a sales associate or by anomalies that appeared on certain

daily report HHowever, this inconsistency 31s not evidence that

Terbecki or Salerno was actually responsible for initiating the

I

Asset Protection investigation. Such a conclusion is unreason

able because it would require unsupported speculation and }:

therefore an inference to which Plaintiffs are not entitled. See

Lloyd v. Card, 283 ked. Appx. 696, 701 (11th Cir. 2008) (stating

that inferences based on speculation are not reasonable) (citing

Marshall v. City of Cape Coral, Fla QT y 555. 1559 (11th

Cir. 19&6))

2Ua

that Phillips was not involved with the investigation

when the January 23, 2006, email was sent and that

Phillips did not know the status of the investigation

fd. Wanno also testified that the investigation should

not have been closed and wa reopened shortly

thereafter. /d. at 69

Viaintiffs presented no evidence that Terbecka o:

salerno took any action to initiate the Asset

Protection iavestivgalion in December of 2005 or that

they were aware of the investigation prior lo March of

2006. No non-speculative evidence was) presented

that Phillips terminated the investigation of Plain

tiffs because it had actually been concluded with no

adverse finding Nor was any non-speculative ev)

dence presented that Terbecki or Salerno played a

role in reopening the Asset Protection investigation

‘Therefore, the fact that the Asset Protection investi

gation was closed and later reopened is not evidence

that Salerno influenced Phelan to take adverse

employment action against Plaintiff

furthermore, the fact that Phelan did not con

duct another independent investipation after receis

Inf the results of the Asset Protection inve Ligallon

from Hanno is of no moment because there 1s no non

speculative evidence that Phelan relied on anything

other than Hanno’s investigation results and its fruit

in reaching her decision to suspend and terminat

Plaintiff: See 4/16 ‘nial iY al P59 Nor lS there afhy

evidence that the Asset Protection investigation was

tainted by age animus. ‘Therefore, Phelan rehed on

the results of an independent investigation and no

additional investigation by Phelan was necessary to

dispel suspicion of discriminatory bias

Nor is it significant that Salerno did not advise

Phelan of all information related to Plaintiffs’ employ

ment history at Saks, particularly information in

apposite to Plaintiffs’ sales and refund practices. ‘That

Salerno did not apprise Phelan of Plaintiffs’ entire

employment history at Saks, including prior claims of

discrimination against a third party, provides no

reasonable basis for concluding that Salerno withheld

information from Phelan due to age animus. This 1

hecause no evidence was) presented that Salerno

fasled to disclose information that could reasonably

have been expected to alter Phelan’s decision. ven if

Phelan had known that Perez had complained of ape

discrimination by ‘VTerbecki, there is no rationale that

suggests how this information might have altered

Phelan’s decision or how Salerno could have’ ben

efitted by not disclosing it, especially because Perez’

discrimination claim was against ‘Terbeck not

Salerno

The Asset Protection mvestipation led to the notes of

Hanno’s interviews with Plaintiffs and the resulting written

statements. Pl.s’ kixs. 67, 68; Def.’s Exs. 21, 41

Viaintifis’ evidence of disparate treatment be

tween Plaintiffs and David Algarin (“Algarin”) dos

not support their claims of discrimination and retal

ation. In a case alleping age animus by a decision

maker, disparate treatment of a comparator 1s rele

vant because it pive rise to the inference that the

tated reason for taking the adverse cmployment

action was pretextual. See Silvera v. Orange County

School Bd., 244 F.3d 1253, 1259 (llth Cir. 2001). In a

“cats paw case, an inference of pretext trom di:

parate treatment only arises if a non-decision maker

harboring age animus influenced the decision make1

to take adverse employment action against a Plaintiff

while Laking le 5 SCve»r¢ Or ho adverse employment

action against the comparator. llowever, without

other evidence that a non-decision maker influenced

the decision maker’s adverse employment action, no

inference of pretext 1s warranted. When no animus 1

alleged on the part of the decision maker, the absence

of evidence of influence by the non-decision maker on

the decision maker's adverse employment action

makes it LN poss ible for dis paratle treatment to serve

ae independent evidence of age animus by the non

decision maker because there is no nexus between the

disparate treatment and the non-decision maker

accused ol ad Criminatory bias Likewise evidence 0}

disparate treatment cannot itself serve as evidence

that the decision make! W aad infttuenced by a Ton)

decision maker with discriminatory bias. While dt:

parate treatment may suggest animus on the part of

a decision maker, it does not inherently suggest that

a neutral decision maker must have been influenced

by a third party Therefore, in a “cat’ paw cas¢

disparate treatment cannot serve as evidence that a

non-decision maker harbored discriminatory bias or

that the decision maker acted as a conduit for the

non-decision maker's age animu: absent othe:

evidence suggesting that the disparate treatment wa

influenced by a non-decision maker

lor disparate treatment of Algarin to be relevant

here, Plaintiffs must have presented other evidence

that ‘verbecki or Salerno influenced Phelan to take

adverse employment action against Plaintiffs, such

that Phelan became a conduit’ for Verbecki or

Salernos discriminatory bias or retaliatory motive:

Plaintiffs presented insuffigient evidence for a rea

sonable juror to conclude that Phelan acted as a con

duit. for Salerno’s age animus or retahatory motive

or that malerno harbored age animus Loward

Plaintiff: furthermore, no evidence was presented

that Terbecki influenced Phelan’: decision to

terminate Plaintiffs in such a way that Phelen [si

was merely the “cat paw for ‘Terbecki’s discrimi

natory bias or retaliatory motives. Therefore, Plain

liffs evidence of disparate treatment does not support

their claims of “cat’s paw” lability

Taking the evide MNCce as a whol and VICW ITE? Iw in

Ibs agpregate, a reasonable juror could conclude that

Terbecki harbored age animus towards Plaintiff:

However, no reasonable JUTOr could rely on the accu

mulation of all evidence presented at trial to conclude

that Salerno harbored age animus towards Plaintiff

or maintained age based discriminatory bias” in

neral furthermore 1) reasonable puro) ould

nelude that in taking adverse employment action

mst Plaintiff VMhelan actee i a mere conduct

( for lberbecki of werno i mimus or retals

L}

p

INT TED STATES COURT OF APPEALS

MOR THE KLEVENTH CIRCUT!I

he ee

ee potilf Appellant

Cross-Appellee

Ui, IN

I

} } I Appellec

t ‘ppellat

| H | { | 1D) i on 4

a ‘

L400)

ON PETITIONS) FOR REHEARING AND

PETITIONS) FOR REHEARING EN BANC

(hkiuled Mar. 177, 2010)

(circuit Judge and

WILSON and

Belore vy

Jud 4

Phe Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

ted that the Court In

45. kederal Kul

bane (Rule 3845

polled on rehearing en

rf Cyuie

; of Appellate Procedure)

are DENIED

he Petition(s) for Hehe Aarifip hon sane

Wee RED FOR THE COUR]

UNPTED STATES

CIRCUT JUDGI